The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

The use of information and communications technologies in fact-finding: A survey by the SR on SumEx

With the highly anticipated report of the UN Commission of Inquiry on the Gaza Conflict to be discussed at the Human Rights Council (HRC) on 29 June, and to be published most certainly next week, one may except a renewed debate over fact-finding methodologies. Of particular interest, the question in the background of the comments and assessment of this report would probably revolve around the extent to which fact-finding on IHL violations requires a specific approach compared to human rights fact-finding.

I happened to take part in a very interesting expert meeting on “Fact-finding Mechanisms and International Humanitarian Law” earlier this month, co-organised by the Belgian Interministerial Commission for Humanitarian Law and the Foreign and Commonwealth Office of the United Kingdom, to examine what the unique nature of IHL fact-finding could be and may entail. The special features of IHL norms on the conduct of hostilities definitely require considering a set of facts that might not be systematically looked at through a more general human rights fact-finding work in order to make legal determination.

This being said, the ever-growing literature and practice reflecting on fact-finding methodologies offer contributions from all fields and disciplines. In that respect, the latest report (A/HRC/29/37) of the Special Rapporteur on extrajudicial, summary or arbitrary executions (SR) provides an interesting account of the implications of information and communications technologies (ICTs) for the protection of the right to life.

The SR defines the ICTs as “the hardware and software that facilitate the production, transmission, reception, archiving and storage of information” (para. 37). He highlights that “Information harnessed in this way can be used to secure accountability, but the technology can also ensure visibility or mobilize support for persons in immediate danger” (para. 37). The SR further analyses, among other issues, “the potentially transformative role of “civilian witnesses” in documenting human rights violations and the challenges of using the evidence generated and transmitted by those witnesses — such as verification” (paras. 68-71) as well as the importance of satellite evidence (paras. 74-76) and the central question of evaluating evidence collected using ICTs (77-91).

I highly recommend this report, not least because the difficulty in accessing certain types of information, notably that only available to the attacker, in IHL fact-finding might be downplayed using some ICTs.

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